Apartheid in Namibia

A Study by the

International Commission of Jurists

Second in a series of studies, prepared by the International Commission of Jurists, a non-governmental organization in consultative status with the United Nations, on infringements of the Universal Declaration of Human Rights in southern Africa.

Introduction by Niall MacDermot
Secretary-General, International Commission of Jurists

While many details have changed in recent years, the overall picture of apartheid in Namibia (South West Africa) remains the same. Namibia is still a land where an indigenous black people have been disinherited from both their land and their rights as human beings by a white minority. As put forth by the South African Government, apartheid is simply a system of keeping the races apart. Even if true, this would be insidious enough in itself. But in practice, apartheid strives to maintain a relationship between the races such that the whites are the masters and the blacks the servants. Not only is the presence and movement of blacks in Namibia rigidly controlled by a degrading system of "pass laws", but blacks are further exploited as a cheap source of labour to further an economy completely controlled by the white minority. Thus the contract labour

system, which incorporates the machinery for the exploita tion of black labour, is as vital to the practice of apartheid in Namibia as the "pass laws" themselves.

Nor is it even sufficient to regard apartheid in merely social and economic terms, for it has its political aspects as well. It has always been essential in the exploitation of this land for the white South African Government to disenfranchise its people, not only socially and economically, but politically as well. And now, with the introduction of its Bantustan programme, South Africa has demonstrated the full cynicism of apartheid, for the Bantustan concept, while granting the semblance of autonomy, is in reality only a more subtle means of denying the people of Namibia their freedom. While giving the illusion of change, it is intended in fact to maintain apartheid in Namibia in all its aspects: social, economic, and political. In short, notwithstanding South Africa's contention that apartheid is intended to further the separate development of the races, it has always been and continues to be, as this study hopes to demonstrate, a means of furthering the development of one race at the expense of another.

If indeed there is anything new in Namibia-any cause for hope-it is in the new-found identity of the Namibian people themselves. Systematically exploited and kept apart by the white Government, they have in recent years demon. strated a newly found unity of purpose. The last two years have seen a successful labour strike, the boycott of a sham South African sponsored election, and the formation of a National Convention in which the various tribal groups have come together for the purpose of achieving a unified and independent Namibia. In these and in numerous petitions to the outside world, the Namibian people have expressed their desire and intention one day to be free of the shackles of apartheid.

The legal status of Namibia

During the scramble for Africa in the 19th century, Namibia (South West Africa) was occupied as a German Protectorate from 1884. In 1915, as part of the general hostilities in the First World War, a force of 43,000 white South African volunteers invaded the territory, thus ending 30 years of German rule. Although the Union of South Africa had expected to annex the territory as part of the spoils of war, it responded to an appeal by President Woodrow Wilson, and the former German colony was placed under a Mandate as provided for by Article 22 of the League of Nations Covenant. The terms of the Mandate, which was officially declared on 17 December 1920, stated that the Mandate was

"conferred upon His Britannic Majesty to be exercised on his behalf by the Government of the Union of South Africa... to promote to the utmost, the material and moral well-being and the social progress of the inhabitants of the territory."

The mandatory was under a duty to submit an annual report to the Council of the League to be examined by a Permanent Commission.

With the dissolution of the League of Nations, the United Nations Charter provided for a trusteeship system to deal with the question of mandated and other non-selfgoverning territories. The Charter set up a Trusteeship Council to work with the administering Powers in bringing about the independence of all non-self-governing territories. The Union of South Africa, however, refused to submit its mandated territory to trusteeship, although at first it acknowledged the continuation of the mandate and submitted reports to the United Nations. After 1949, it refused to send any further reports to the United Nations, maintaining that the mandate and all the duties incurred under it had lapsed with the dissolution of the League. In fact, as early as 1946, the Union had proposed that South West Africa be incorporated in, or should become a fifth province of, the Union as a result of a series of tribal meetings on the basis of which the Union contended that the majority of Africans favoured the proposal. The United Nations General Assembly denied South Africa's request for incorporation, and the demand was not pursued any further. However, since 1949, the white population of Namibia has elected 10 representatives to the South African Parliament, six of whom sit in the House of Assembly and four in the Senate. Economically, Namibia has, for all practical purposes, become integrated with South Africa. There are no longer even separate statistics for the Namibian economy.

In 1950, the General Assembly, following a resolution of December 1949, sought a clarification from the International Court of Justice of the legal status of the Territory. In its Advisory Opinion, the Court held unanimously that the mandate was still in force, that South Africa continued to have international obligations under Article 22 of the League of Nations Covenant, that annual reports should still be submitted and that South Africa did not have the right unilaterally, without United Nations consent, to qualify the international status of the Territory. By eight

votes to six, however, the Court held that Chapter 12 of the Charter imposed no obligation to place the Territory under trusteeship.

During the next decade, the issue of South West Africa continued to Occupy the attention of the General Assembly, which called for two further Advisory Opinions, in 1955 and 1956, but was able to make little progress in the face of South Africa's recalcitrance. Then in 1960, Ethiopia and Liberia, as the only African States which had been Members of the League of Nations, brought proceedings in the International Court of Justice against South Africa in which they sought a contentious judgment to the effect that South Africa had violated the 1920 mandate by introducing the policy of apartheid and by having sought substantially to change the mandate's terms without United Nations consent.

South Africa responded by raising the preliminary objection that the Governments of Ethiopia and Liberia had no locus standi in the proceedings, but in 1962, by a majority of eight to seven, the Court dismissed these preliminary objections in a decision affirming the standing of the plaintiffs to bring the suit and affirming the jurisdiction of the Court to adjudicate upon the merits of the dispute, whereupon the second phase of the case began.

It was to be another four years before the Court was to render its final decision. In the intervening years, however, the death of one of the judges, and the incapacitating illness of another, both of whom had voted with the majority in 1962, led to an unexpected result. On 18 July 1966, the Court announced that it had no power to render a decision, thus dismissing the case without ruling on its merits. The majority of the Court maintained that neither Ethiopia nor Liberia had established sufficient legal interest in their complaint to maintain suit, which they reconciled with the Court's prior ruling by a very subtle distinction between the legal standing of Ethiopia and Liberia to bring the suit, affirmed in 1962, and their legal standing to obtain a decision, denied in 1966. The repercussions of this decision, regarded by much of the world as a reversal in effect of the Court's earlier decision, were felt immediately in the United Nations where the General Assembly, after three weeks of debate, on 27 October 1966 resolved to terminate South Africa's mandate by a vote of 114-2 (Portugal and South Africa), with 3 States abstaining (France, Malawi and the United Kingdom) and two absent (Botswana and Lesotho).

Four years later, in 1970, the Security Council supported the General Assembly's decision with a resolution (276[1970]) reaffirming the termination of the mandate, demanding that Member States cease all relationship with South Africa involving South West Africa, now renamed Namibia, and calling for the withdrawal of South Africa from the Territory. An authoritative determination of the status of South Africa's continued presence in Namibia came on 21 June 1971, when the International Court of Justice delivered the following opinion in answer to the question put by the Security Council: "what are the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Security Council resolution 276 (1970)":

37-052 O 74 - 13

by 13 votes to 2:

(1) that, the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory;

by 11 votes to 4:

(2) that States Members of the United Nations are under obligation to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration;

(3) that it is incumbent upon States which are not Members of the United Nations to give assistance, within the scope of subparagraph (2) above, in the action which has been taken by the United Nations with regard to Namibia.

The apartheid policy

The Government of South Africa continued the German colonial policy of land alienation imposed on the tribes and subsequently adopted the policy of apartheid in order to ensure and extend the domination of the white minority (estimated in 1970 as 90,658 Europeans out of a total population of 746,328) and their exploitation of the country's resources both natural and human.

The Territory is divided by the so-called "Red line" into two major zones separating whites and blacks. In the north are the Tribal Reserves and supposedly autonomous Bantustans where only Africans live. In the south, including all the urban areas and the important mines, is the white settler area, called the Police Zone, which also contains small "locations" for the migrant African workers who live there and who comprise the major part of the labour force of the white economy. Not only are the whites in possession of all the valuable land of the Territory, but the very fact of the economic unviability of the lands set aside for the African also insures a cheap source of labour since the African, unable to sustain himself and his family in the northern zone, must find work in the white man's mines or on his farms in the southern Police Zone. As a United Nations study has noted:

"The prosperity of the white settler community and the foreign corporations depends mainly on cheap African labour. Land policy was deliberately designed to create a labour surplus. The combined pressures of land shortages and poverty have forced Africans to leave their rural homes for the white settler labour

"The Vagrancy Proclamation 1920 provides for the suppression of idleness and trespass. Natives are allowed to select their own masters... (But) when a Native is dilatory in finding employment, an employer may be indicated, and if he refuses to engage himself, he may be prosecuted under the Proclamation. Before sentencing Natives under the vagrancy laws, magistrates are required to give the offender an opportunity of taking employment in preference to undergoing imprisonment."

Thus the Vagrancy Proclamation forms a basis for a general obligation of the African to work, and penal sanctions are provided for "idle and disorderly persons", who are variously defined. Section 1, for example, states that: "Any person found wandering abroad and having no visible lawful means or insufficient lawful means of support, who... shall not give a good and satisfactory account of himself [to a magistrate], shall be deemed... to be an idle and disorderly person". On conviction, such a person is liable to a fine of not more than R 200 or up to 12 months' imprisonment, with or without hard labour, and with spare diet and solitary confinement for the first three months of any sentence. Section 3 (i) states that: "Every person found without the permission of the owner (the proof of which permission shall lie on such a person) wandering over any farm, in or loitering near any dwelling-house, shop, store, stable, outhouse, garden, vineyard, kraal or other enclosed place, shall be deemed to be an idle and disorderly person." On conviction, such a person is liable to a fine of £100, in default of which, the penalties provided in Section 1 apply. These penalties need not apply to first offenders, who may be assigned as labourers to public works, municipalities or private houses.

The pass laws

While the labour of the African is needed in the white economy, the policy of apartheid requires nevertheless that his presence and movement in the Territory be severely restricted. Thus the African in Namibia is subjected to a burdensome and humiliating system of "pass laws" to be found essentially in the Native Administration Proclamation of 1922 (as amended), the Extra-territorial and Northern Natives Control Proclamation of 1935 (as amended) and the Natives (Urban Areas) Proclamation of 1951 (as amended).

Within the borders of the Territory itself, movements of Africans are controlled by the Native Administration Proclamation which, in Section 11, states that "any native who desires to travel within the Territory may do so upon a pass issued by his European employer, or when he has no European employer, by a magistrate, or officer in charge". Under Section 12, a person so authorized may, at his discretion, refuse to issue a pass "for any reason appearing to him to be sufficient". Exemptions from these requirements are accorded to policemen and messengers on governmental service, missionaries, teachers, Africans accompanying their European employer and Africans granted a certificate of exemption. Any African having no pass or certificate of exemption, or neglecting or refusing to produce his

pass when called upon, may be arrested without warrant and is liable on conviction to a fine of up to £1 or imprisonment with or without hard labour for a period of up to 14 days for a first offence or double for a subsequent offence.

The entry into the Police Zone of Africans coming into the Territory from outside or from the northern Tribal Reserves is regulated by the Employment Bureau Regulations of 1972. These provide that Africans in the Police Zone must possess identification at all times, to be produced on demand by any authorized person, police officer or person to whom they offer to engage themselves. In practice, such passes are normally granted only to adult male Africans for the specific purpose of their taking up employment as labourers in the Police Zone.

The position of Africans in the urban areas within the Police Zone is governed by the Natives (Urban Areas) Proclamation. Under Section 10 of this Proclamation, as amended by Section 3 of Ordinance No. 25 of 1954, no African may remain in an urban area for more than 72 hours without official permission unless:

(a) he was born and permanently resides there; or
(b) he has worked continuously for 15 years or for one
employer for not less than 10 years and has not during
that period been sentenced to imprisonment without
the option of a fine for more than seven days or with
the option of a fine for more than one month; or

(c) he or she is the wife, unmarried daughter or son
under 18 years of age of an African entitled to remain
under (a) or (b) above.

In short, official permission is required in order to stay for more than 72 hours in an urban area. The period of validity of a permit to take up employment is limited to the duration of the employment. A permit to seek work may be granted for not less than seven days and not more than fourteen days, unless employment is found. In addition, the number of Africans allowed into any urban area is based on the immediate labour requirements of the area. All employment permits are issued "in accordance with regulations which the Administration may issue for the purposes of maintaining a labour quota for a particular urban area" (Section 10 (ii), Natives (Urban Areas) Proclamation).

Every local urban authority is required to submit to the Administrator whenever required a return showing, inter alia: "(d) the number and sexes of natives which, in the opinion of the local authority, is necessary to supply the reasonable labour requirements of the urban area" and "(e) the number and sexes of the natives which the urban local authority considers not necessary for the purposes mentioned in paragraph (d) and desires to have removed" (Section 24). Those not required may be removed when the Administrator "is satisfied that the number of natives within that area is in excess of the reasonable labour requirements of that area" (Section 25).

Thus the sole role accorded to the African by apartheid is that of an outcast in his own country, banished to the poorest lands which he must periodically leave, abandoning his family, to become a migrant labourer on the white man's farm or in his mines, working for meagre wages and often under appalling conditions.

Contract labour system

As the contract labour system is perhaps the primary means by which the African population has been kept fragmented, politically and socially, and is the basis of white control over the African population, it is necessary to examine it in some detail. The system of recruitment and exploitation of African workers operating in Namibia today is unique in its organized and efficient application of conditions that are akin to slavery. In protest against the blatant and brutal exploitation practised under this system, 13,500 Ovambo contract workers went out on strike from December 1971 to the middle of February 1972. Though the strike succeeded in forcing some small changes in the system, its real significance was as the first major expression of a deep and steadily growing discontent.

Until January 1972, jobs could be obtained only by signing a contract with the semi-governmental South West Africa Native Labour Association (SWANLA). Some of the largest employers, including the American-owned Tsumeb Corporation, Ltd., and Consolidated Diamond Mines of South West Africa, were represented on the Board of Direc tors of SWANLA. The power of this body over the lives of African labourers can be glimpsed from the fact that in 1971, out of a total African labour force of 50,000 workers, 43,000 were contract workers recruited by SWANLA. Employers needing labourers would send requisitions to SWANLA, indicating the type of work, period of the contract (generally 12 to 18 months) and wages offered. SWANLA classified its recruits according to a physical examination as A, B and C, suitable respectively for work in mines, on land and on the agricultural and livestockbreeding farms of the Europeans; and there was the additional classification of "piccanins" (juveniles under 16 years). The minimum wages stipulated by SWANLA ranged from R 3.75 per month for a "piccanin" to about R 8.69 a month for a physically fit miner, plus food, accommodation and medical care provided by the employer, though some employers did pay more (£1 = R 1.63; R 1 = $1,47).

It was a criminal offence for a worker to break his contract except in extraordinary cases. He could not change his job and, when he had completed the contract term, had to return home for at least a month before he could be recruited again. The workers were not allowed to bring their wives and families to live with them during the contract period. In the larger urban areas, workers were made to live in compounds, sometimes in conditions of extreme overcrowding and squalor. (This is particularly the case in Katatura, the Ovambo compound outside Windhoek, which holds 5,000 men in close to prison conditions, and has been the scene of repeated worker protests and violence.)

On 13 December 1971, about 5,000 Ovambo workers went on strike to protest against low wages and the contract labour system. The strike was apparently triggered off by a public statement by the Government denying allegations that the system was "a form of slavery", and saying that it was a purely voluntary arrangement and that men who objected to it did not have to enter into contracts. The strike quickly spread until more than 13,000 workers, mostly Ovambos, were on strike by the end of January. The